This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1037b.JDC
DATE: 4/11/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1037 Depositions of Witnesses in Criminal Proceedings
SPONSOR(S): Criminal Justice Subcommittee, Yarkosky
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1208
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 15 Y, 2 N, As CS Padgett Hall
2) Judiciary Committee 19 Y, 4 N Padgett Kramer
SUMMARY ANALYSIS
A deposition is “out-of-court testimony made under oath and recorded by an authorized officer for later use in court.”
Generally, in a felony criminal proceeding, a party may take depositions at any time after the filing of the charging
document. Depositions are not allowed in cases where a defendant is charged with a misdemeanor or criminal
traffic offense unless good cause is shown to the trial court.
A parent, guardian, attorney, guardian ad litem, or other advocate appointed by the court for a victim or witness
under the age of 18, a person who has an intellectual disability, or a sexual offense victim or witness, may file a
motion with the court for an order to protect the victim or witness in any judicial proceeding or other official
proceeding from severe emotional or mental harm due to the presence of the defendant if the victim or witness is
required to testify in open court. In entering such a protective order, a court may prohibit a victim or witness from
being deposed in a criminal proceeding.
CS/HB 1037 amends s. 92.55, F.S., to prohibit a defendant in a criminal proceeding, or his or her representative, from
taking the deposition of specified victims or witnesses absent a showing of good cause. Such specified victims or
witnesses include:
A victim in a sexual offense case who is under the age of 18; or
Any person who has an intellectual disability.
Under the bill, a court may authorize a defendant to take a deposition of the specified victims or witnesses upon
receiving a written motion by the defendant, or his or her representative, stating the following:
A deposition is necessary to assist at a criminal trial;
The evidence sought is not reasonably available by any other means; and
The probative value of the testimony outweighs any potential harm to the person to be deposed.
In ruling on a motion to take the deposition of a specified victim or witness, the court must consider the following:
The mental and physical age and maturity of the victim or witness.
The nature and duration of the offense.
The relationship of the victim or witness to the defendant.
The complexity of the issues involved.
Whether the victim or witness would suffer moderate psychological harm as a consequence of being
compelled to testify at a deposition.
The functional capacity of the victim or witness if he or she has an intellectual disability.
The willingness of the victim or witness to be deposed.
Any other fact that the court deems relevant.
The bill requires the court to make specific written findings of fact, on the record, as to the basis of its ruling on
whether to allow a deposition.
The bill prohibits depositions for specified victims and witnesses in criminal proceedings unless authorized by a
court pursuant to a written motion by the defendant or his or her representative. Under current law, a defendant may
generally take the depositions of such victims or witnesses without permission from the court. Thus, the bill may
increase judicial workload resulting from reviewing motions and conducting hearings to authorize depositions that
are currently permitted without a motion or hearing.
The bill provides an effective date of July 1, 2023. STORAGE NAME: h1037b.JDC PAGE: 2
DATE: 4/11/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Depositions in Criminal Proceedings
A deposition is “out-of-court testimony made under oath and recorded by an authorized officer for later
use in court.”
1
Generally, in a felony criminal proceeding, a party may take depositions at any time after
the filing of the charging document.
2
Depositions are not allowed in cases where a defendant is
charged with a misdemeanor or criminal traffic offense unless good cause is shown to the trial court.
3
In
determining whether to allow a deposition in such cases, a court may consider the:
Consequences to the defendant;
Complexity of the issues involved;
Complexity of the witness’ testimony; and
Other opportunities available to the defendant to discover the information sought by deposition.
4
The ability to depose a witness is also limited by the role of the person to be deposed in the criminal
proceeding.
5
Generally, a defendant may, without leave of court, depose any witness listed by the
prosecutor as a Category A witness
6
or listed by a co-defendant as a witness to be called at trial. No
party may take the deposition of a Category B
7
witness except upon leave of court with good cause
shown.
8
In determining whether to allow a deposition, a court may consider the same factors for
determining whether good cause exists to depose a witness in a misdemeanor or criminal traffic case.
9
A Category C
10
witness may not be deposed unless the court determines that the witness should be
listed in another category.
11
Depositions of children under the age of 18 are required to be videotaped unless a court orders
otherwise.
12
A court may order the videotaping of a deposition of a witness with fragile emotional
strength or an intellectual disability, or may order that such deposition be taken in the presence of the
court or a special magistrate.
13
Judicial Proceedings Involving Specified Victims or Witnesses
1
Merriam-Webster, https://www.merriam-webster.com/dictionary/deposition (last visited Apr. 7, 2023).
2
Fla. R. Crim. P. 3.220(h)(1), F.S.
3
Fla. R. Crim. P. 3.220(h)(1)(D), F.S.
4
Id.
5
Id.
6
Category A witnesses include:
Eye witnesses;
Alibi witnesses and rebuttal to alibi witnesses;
Witnesses who were present when a recorded or unrecorded statement was taken from or made by a defendant or codefendant,
which shall be separately identified within this category;
Investigating officers;
Witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as to any
offense charged;
Child hearsay witnesses;
Expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify; and
Informant witnesses, whether in custody, who offer testimony concerning the statements of a defendant about the issues for
which the defendant is being tried. Fla. R. Crim. P. 3.220(b)(1)(A)(i), F.S.
7
Category B witnesses include all witnesses not listed in Category A or Category C. Fla. R. Crim. P. 3.220(b)(1)(A)(ii), F.S.
8
Fla. R. Crim. P. 3.220(h)(1)(B), F.S.
9
Id.
10
Category C witnesses include all witnesses who perform only ministerial functions or whom the prosecutor does not intend to call at
trial and whose involvement with and knowledge of the case is fully set out in a police report or other statement furnished to the
defense. Fla. R. Crim. P. 3.220(b)(1)(A)(iii), F.S.
11
Fla. R. Crim. P 3.220(h)(1)(C), F.S.
12
Fla. R. Crim. P. 3.220(h)(4), F.S.
13
Id. STORAGE NAME: h1037b.JDC PAGE: 3
DATE: 4/11/2023
Section 92.55, F.S., contains protections for certain crime victims and witnesses in criminal
proceedings, including a victim or witness under the age of 18, a person who has an intellectual
disability, or a sexual offense victim or witness.
“Sexual offense victim or witness” means a person who was under the age of 18 when he or she was
the victim of or a witness to a sexual offense.
14
“Sexual offense” means any offense specified in s. 775.21(4)(a)1., F.S., or s. 943.0435(1)(h)1.a.(I),
F.S.
15
A parent, guardian, attorney, guardian ad litem, or other advocate appointed by the court under s.
914.17, F.S., for a victim or witness under the age of 18, a person who has an intellectual disability, or
a sexual offense victim or witness, may file a motion with the court for an order to protect the victim or
witness in any judicial proceeding or other official proceeding from severe emotional or mental harm
due to the presence of the defendant if the victim or witness is required to testify in open court.
16
In
entering such a protective order, a court may prohibit a victim or witness from being deposed in a
criminal proceeding.
17
In ruling upon the motion, the court must consider:
The age of the child, the nature of the offense or act, the relationship of the child to the parties
in the case or to the defendant in a criminal action, the degree of emotional trauma that will
result to the child as a consequence of the defendant’s presence, and any other fact that the
court deems relevant;
The age of the person who has an intellectual disability, the functional capacity of such person,
the nature of the offenses or act, the relationship of the person to the parties in the case or to
the defendant in a criminal action, the degree of emotional trauma that will result to the person
as a consequence of the defendant’s presence, and any other fact that the court deems
relevant; or
The age of the sexual offense victim or witness when the sexual offense occurred, the
relationship of the sexual offense victim or witness to the parties in the case or to the defendant
in a criminal action, the degree of emotional trauma that will result to the sexual offense victim
or witness as a consequence of the defendant’s presence, and any other fact that the court
deems relevant.
18
Additionally, the court may enter an order:
Limiting the number of times that a child, a person who has an intellectual disability, or a sexual
offense victim or witness may be interviewed;
Prohibiting depositions of the victim or witness;
Requiring the submission of questions before the examination of the victim or witness;
Setting the place and conditions for interviewing the victim or witness, or for conducting any
other proceeding; or
Permitting or prohibiting the attendance of any person at any proceeding. The court shall enter
any order necessary to protect the rights of all parties, including the defendant in any criminal
action.
19
Effect of Proposed Changes
14
S. 92.55(1)(a), F.S.
15
S. 92.55(1)(b), F.S. A conviction for the offenses specified in s. 775.21(4)(a)1., F.S., and s. 943.0435(1)(h)1.a.(I), F.S., results in a
person being designated as a sexual predator or sexual offender, respectively.
16
S. 92.55(2), F.S.
17
Id.
18
S. 92.55(3), F.S.
19
S. 92.55(4), F.S. STORAGE NAME: h1037b.JDC PAGE: 4
DATE: 4/11/2023
CS/HB 1037 amends s. 92.55, F.S., to prohibit a defendant in a criminal proceeding, or his or her
representative, from taking the deposition of specified victims or witnesses absent a showing of good
cause. Such specified victims or witnesses include:
A victim in a sexual offense case who is under the age of 18; or
Any person who has an intellectual disability.
Under the bill, a court may authorize a defendant to take a deposition of the specified victims or
witnesses upon receiving a written motion by the defendant, or his or her representative, stating the
following:
A deposition is necessary to assist at a criminal trial;
The evidence sought is not reasonably available by any other means; and
The probative value of the testimony outweighs any potential harm to the person to be deposed.
In ruling on a motion to take the deposition of a specified victim or witness, the court must consider the
following:
The mental and physical age and maturity of the victim or witness.
The nature and duration of the offense.
The relationship of the victim or witness to the defendant.
The complexity of the issues involved.
Whether the victim or witness would suffer moderate psychological harm as a consequence of
being compelled to testify at a deposition.
The functional capacity of the victim or witness if he or she has an intellectual disability.
The willingness of the victim or witness to be deposed.
Any other fact that the court deems relevant.
The bill requires the court to make specific written findings of fact, on the record, as to the basis of its
ruling on whether to allow a deposition.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 92.55, F.S., relating to judicial or other proceedings involving victims or witness
under the age of 18, a person who has intellectual disability, or a sexual offense victim or
witness; special protections; use of therapy animals or facility dogs.
Section 2: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill prohibits depositions for specified victims and witnesses in criminal proceedings unless
authorized by a court pursuant to a written motion by the defendant or his or her representative.
Under current law, a defendant may generally take the depositions of such victims or witnesses
without permission from the court. Thus, the bill may increase judicial workload resulting from
reviewing motions and conducting hearings to authorize depositions that are currently permitted
without a motion or hearing.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None. STORAGE NAME: h1037b.JDC PAGE: 5
DATE: 4/11/2023
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 29, 2023, the Criminal Justice Subcommittee adopted a proposed committee substitute (PCS)
and reported the bill favorably as a committee substitute. The PCS differed from the original bill as it:
Revised a provision that prohibited a defendant from taking the deposition of a victim or witness
under the age of 18 in an enumerated list of offenses to prohibit a defendant from taking the
deposition of a victim in a sexual offense case who is under the age of 18, absent a showing of
good cause.
Prohibited a defendant from taking the deposition of a victim or witness who has an intellectual
disability in all criminal cases, absent a showing of good cause, rather than in an enumerated list of
offenses.
Deleted a provision prohibiting a defendant from taking the deposition of any victim or witness in an
enumerated list of offenses.
Changed the effective date to July 1, 2023.
This analysis is drafted to the committee substitute as adopted by the Criminal Justice Subcommittee.